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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File Number: EB-06-NY-013
)
Mobile Car Service Inc. NAL/Acct. No: 200732380005
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Brooklyn, NY FRN: 0014 8301 60
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)
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 29, 2007
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mobile Car Service Inc. ("Mobile") in Brooklyn, NY, apparently
willfully and repeatedly violated Section 301 of the Communications
Act of 1934, as amended ("Act"), by operating a base station on the
frequency 35.18 MHz and mobile units on the frequency 34.94 MHz
without the required license. We conclude, pursuant to Section 503(b)
of the Act, that Mobile is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 7, 2006, in response to an interference complaint, an
agent in the Commission's New York Office conducted a station
inspection of Mobile, which is located at 361 Union Ave, Brooklyn NY
11211. The agent conducted the inspection with one of Mobile's owners.
The agent determined that Mobile operated a base station on the
frequency 35.18 MHz and mobile units on the frequency 34.94 MHz.
3. During the inspection, Mobile stated to the agent that it did not have
a copy of its license at the station. Mobile also directed the agent
to its radio service technician, who stated that an application had
been filed with the FCC and that Mobile was licensed to operate. At
the agent's request, Mobile agreed to send a copy of its license to
the agent via facsimile. The agent warned Mobile that it needed to
have its FCC license posted at all times and that, if it was unable to
provide the agent with a license, it would be in violation of the
FCC's Rules and must cease operations immediately.
4. Later that day, the agent searched the Commission's database and found
that there was no evidence of a Commission authorization for Mobile to
operate a base station on 35.18 MHz or mobile units on 34.94 MHz in
Brooklyn, NY. The agent contacted Mobile by telephone and informed the
owner that no records were found on the FCC database for any current
license or application for Mobile Car Service Inc. The only license in
the database for Mobile Car Service Inc. had expired on October 13,
2004. The agent again warned Mobile to cease all operations and
advised the owner that failure to do so would subject Mobile to a
possible fine.
5. On February 9, 2006, the agent, using a mobile direction finding
vehicle, monitored the frequencies 35.18 MHz and 34.94 MHz and
determined that the transmissions were coming from Mobile, located at
361 Union Ave, Brooklyn NY 11211. There continued to be no evidence in
the Commission's database of an authorization for Mobile to operate a
base station on 35.18 MHz and mobile units on 34.94 MHz in Brooklyn,
NY.
6. On February 28, 2006, the New York Office sent a Notice of Unlicensed
Operation to Mobile for operating a base station on the frequency
35.18 MHz and operating mobile units on the frequency 34.94 MHz,
without the required license, in violation of Section 301 of the
Communications Act. The Notice of Unlicensed Operation sent via
certified mail was signed for and dated on March 22, 2006, and the
certified mail return receipt was returned to the New York Office by
the U.S. Postal Service. To date, the New York Office has not received
a reply to the Notice of Unlicensed Operation.
7. On March 22, 2006, a Commission agent, using a mobile direction
finding vehicle, monitored the frequencies 35.18 and 34.94 MHz and
determined that the transmissions were coming from Mobile, located at
361 Union Ave, Brooklyn NY 11211. There continued to be no evidence in
the Commission's database of an authorization for Mobile to operate a
base station on 35.18 MHz and mobile units on 34.94 MHz in Brooklyn,
NY.
III. DISCUSSION
8. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
9. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Act and with a license granted under the provisions of the Act. On
February 7, 2006, during an inspection at Mobile's station, a
Commission agent determined that Mobile was operating a base station
on 35.18 MHz and mobile units on 34.94 MHz without authorization.
Notwithstanding an oral warning during the inspection, the agent found
on February 9, 2006, that Mobile continued to operate a base station
on 35.18 MHz and mobile units on 34.94 MHz without authorization. In
addition, even after receiving a written Notice of Unlicensed
Operation from the New York Office, which was dated February 28, 2006,
the agent found on March 22, 2006 that Mobile continued to operate a
base station and mobile units without authorization. Because Mobile
continued to operate its base station and mobile units without
authorization after receiving oral and written warnings from the
agent, we find that Mobile's actions were willful. Mobile operated
without a license for more than one day; therefore, we conclude that
Mobile's apparent violation was repeated.
10. Based on the evidence before us, we find that Mobile apparently
willfully and repeatedly violated Section 301 of the Act by operating
a base station on 35.18 MHz and mobile units on 34.94 MHz, without the
required license.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operation without an instrument of
authorization is $10,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Mobile is
apparently liable for a ($10, 000) forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Mobile Car Service Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violation of Section 301
of the Act.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Mobile Car Service
Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
14. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
17. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Mobile Car Service Inc. at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
Mobile's license for WPPB992 was for operation of one base station on
451.900 MHz and 75 mobile units on 456.900 MHz. The license was issued on
October 13, 1999 and expired on October 13, 2004.
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301, 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
47 C.F.R. S 1.1914.
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(continued....)
Federal Communications Commission
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Federal Communications Commission